28 Feb 2022 War Threatens Ukraine Surrogates, Intended Parents and Babies  

As the world watches in horror Vladimir Putin’s attack on the democratic republic of Ukraine, all of us are pondering the impact of this terrible, historic war. Certainly few are more impacted by the disruption, displacement and physical destruction of the Russian attack than intended parents from other countries whose Ukrainian surrogates either are pregnant or have already given birth and are now under threat of attack.

As I shared recently with reporters for legal blog Above the Law, The Wall Street Journal and the feminist blog Jezebel, the Russian invasion of Ukraine is not the first international crisis the reproductive health profession has faced. In the process, we’ve only grown better prepared and more efficient at helping families navigate legal and jurisdictional obstacles.

During the most recent of the prior crises, when the COVID lockdowns and travel bans disrupted birth plans and left babies stranded, our team at International Fertility Law Group helped intended parents from around the world get safely to the U.S. for their babies’ births via surrogacy and/or return safely to their home countries with their newborns.

Ukraine a Popular Surrogacy Destination

Ukraine had become a popular destination for intended parents from countries that ban or restrict access to surrogacy, perceived as a safe and economical alternative to the world’s #1 destination for international surrogacy: the United States. Even so, only married, heterosexual couple are allowed to use surrogacy in Ukraine, and only if the man is proven to be sterile.

But other than those eligibility restrictions, surrogacy is virtually unregulated in Ukraine, which means there is no safety net of legislated care and protection for intended parents, surrogates or babies. This only increases the pressure to find diplomatic solutions to establish the nationality and obtain travel documents from the parents’ home countries for babies born via surrogacy Ukraine. In time of war, with emergency and diplomatic agencies taxed or under fire, all of the normal processes for establishing parentage and citizenship become even more precarious, more complicated, and less accessible. Those involved in emergency situations, especially in the nature of a geo-political or natural disaster, must resort to diplomatic and humanitarian solutions through collaboration of all of the participants and the professionals assisting them.

Countries Establish Emergency Protocols for Ukraine Surrogacy Newborns

ABC News reported this week on a couple from Australia, which bans compensated surrogacy, desperately trying to reach their newborn daughter, born 10 weeks early on February 22 to a surrogate in Ukraine. Their daughter was conceived after 15 unsuccessful IVF attempts.

For the past eight weeks, surrogacy non-profit Growing Families has been working with the Australian Department of Foreign Affairs and Trade to develop a faster process for establishing Australian citizenship for babies born to surrogates in Ukraine, director Sam Everingham told ABC News. Everingham said at least 22 Australian couples have existing pregnancies in Ukraine and another 30 couples currently are in the process of embryo transfer.

Meanwhile the Irish government has put plans in place to provide expedited travel documents for newborns born via surrogacy in Ukraine to return with their parents to Ireland, the BBC reports. As many as a dozen Irish babies are due to be born to surrogates in Ukraine through May. While registering babies born abroad for Irish citizenship normally takes up to four weeks, the Irish Department of Foreign Affairs has temporarily eased the requirement that both parents travel to Kyiv to obtain their babies’ travel documents. It also appears the U.K. will be reinstituting emergency passport/travel documents procedures recently utilized during the height of COVID travel disruptions to help U.K. intended parents get back home from surrogacies abroad.

Efforts like those of Australia, Ireland and the U.K. to expedite travel and statehood for families and their babies born abroad are particularly important because babies born via surrogacy in Ukraine are essentially born stateless. In some cases, foreign intended parents may need to engage a Temporary Guardian with a Healthcare Power of Attorney to care for and make decisions for babies born in Ukraine until the parents are able to travel to bring them home.

As agonizing as further delay can be for those who may have struggled for years to become parents, those planning to undertake surrogacy in Ukraine who are not yet pregnant would be well advised to put off embryo implantation, or even consider transporting their embryos out of the war zone.

For those who have existing pregnancies, here are some of the things we have learned to help parents and surrogates navigate the crisis:

• Travel disruption: Getting into the country may be difficult or become impossible. If allowed, flights may be cancelled, so check frequently.
• Establishing parentage and nationality: Currently, both parents must be present in Ukraine to register for their child’s birth certificate since the child is born stateless. Delays in parents getting to Ukraine will delay the process of establishing the child's nationality.
• Surrogate relocation: A surrogate may or may not be allowed to leave the country to ensure her and the child’s safety. Most countries don't allow, let alone support, surrogacy, so evacuation to another country is, at best, a complicated and only partial solution. Under best practices for surrogate selection, a surrogate will have children of her own, and she also may have a spouse, elderly parents or other family members, potentially preventing her from or making her unwilling to relocate.
• POA/Guardianship: Under Ukraine law, while the baby’s Guardian under a Healthcare Power of Attorney can provide care for the child, the Guardian cannot sign paperwork for the baby’s birth certificate. Currently, both parents must be present in Ukraine to obtain their baby's birth certificate.
• Wartime disruption: With conflict comes threats to the power supply and communications infrastructure. Storage of frozen embryos could become a concern, and reaching someone to provide answers and assurances may be difficult or impossible.  
• Embassy/consulate communications: All intended parents should consult and communicate with their home governments regarding travel advisories. For those in need of emergency assistance or seeking to remain in Ukraine, staying in contact with their home nation’s embassy or consulate is essential.

We at IFLG and our colleagues in the assisted reproduction professional community are heartbroken for the people of Ukraine and for the Russian people who oppose this cruel attack on their sovereign neighbor. We pray for the safety of all the surrogates, the babies and the intended parents separated from their children by war or forced to travel into harm’s way and for a peaceful solution for all our families.